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European Law on Direct Taxation, Jacques Malherbe, Professor

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European Law on Direct Taxation, Jacques Malherbe, Professor 19.12.16 European law on direct taxation1 Jacques Malherbe Professor emeritus of the Catholic University of Louvain Avocat (Simont Braun, Brussels) Part I. Introduction Chapter I. Host State and Origin State 1. States raise taxes in order to fund their budget. Taxation is thus directly linked to the exercise of sovereignty. Since the early 20th century, (direct) income taxation has become an important component of the total State revenue. 2. Income taxation first bears on the income of individuals. It also bears on the income of incorporated entities, the income of which on the one hand may find its substance in dividends distributed by subsidiaries which have paid income tax and on the other hand is eventually distributed to individuals. Taxation of the same economic income at the level of the subsidiary, of the parent and of the individual shareholder gives rise to the problem of “economic double taxation”. 3. States traditionally affirm their jurisdiction to tax on the basis of criteria involving a nexus (link) with the income. This link may exist either with the beneficiary of the income, who is e.g. a resident of the State, or with the income itself, which finds e.g. its source in the State. The result of the interaction between the two types of criteria and of varying definitions of each of them is that the same income may be taxed in two or more States, giving rise to the problem of “international double taxation”. As to corporate taxation, the two types of double taxation interact and reinforce one another when the subsidiary, the parent and the individual shareholder are located in different States, each of which may indeed be less prone to solve a problem which concerns a foreign taxpayer. 4. Relief for international double taxation can be granted either by unilateral measures, pursuant to which a State agrees to withdraw its tax claim, or by international double taxation conventions (hereafter DTCs). Two main methods are proposed in order to avoid double taxation: the exemption method and the imputation or tax credit method. According to the OECD Commentary, “under the principle of exemption, the State of residence R does not tax the income which according to the Convention may be taxed in the State E (the State where a permanent establishment is situated) or S (the State of source or situs)”. With the ordinary “imputation” or “credit” method, “the State of 1 First and second parts in English, third part in French. 2 residence allows, as a deduction from its own tax on the income of its resident, an amount equal to the tax paid in the other State E (or S) but the deduction is restricted to the appropriate proportion of its own tax”.2 It must be noted that those methods serve not only to relieve juridical double taxation, but also to alleviate or eliminate economic double taxation, be it at a domestic or at an international level. 5. Which of these methods – exemption or imputation – leads to the optimal use of economic factors? According to some economists, the best allocation is reached by imposing worldwide taxation combined with an imputation system. This combination ensures “capital export neutrality”, meaning that wherever the taxpayer invests, he will pay the same amount of tax in his State of residence. In contrast, “capital import neutrality” implies taxation only in the State of source, leading to territoriality, that is to say to different tax burdens depending on the source country. Capital import neutrality allows foreign investors to compete in the State of source on an equal footing with local investors. From this perspective, capital import or export neutrality is appreciated from the point of view of the State of residence. Most tax systems use a hybrid structure of capital export and capital import neutrality rules. However, a great variety of regimes can be observed, reflecting the diversity of the international tax policies pursued by States.3 6. Within the EU, most of the tax treaties concluded by the Member States follow the OECD Model Convention.4 This Model Convention includes first general provisions as to applicability and general definitions of treaty terms, which are followed by so-called “distributive rules” defined in Articles 6 to 22 of the Model Convention providing for allocation of taxing powers between the Contracting Parties. The Model Convention also contains provisions as to exchange of information and arbitration procedures. Since income taxation can be regarded as a cost linked to the production of income, it influences economic choices. The obvious result of international double taxation is to discourage cross-border economic activity, hereby directly hindering the achievement of the Internal market (Article 26 TFEU - Article 14 EC). Chapter II. The role of the Court of Justice of the European Union in matters of direct taxation : Discriminations and Restrictions 2 OECD Model Convention (2013), Commentary, 23/13 A & B and 23/57 A & B. 3 The exemption and imputation methods can both be applied on an “overall” and on a “per country” basis. With a “per country” limitation, an excess tax credit in relation to one State cannot be offset against tax credits remaining unused in relation to other States. The “overall” limitation allows the credit to be calculated on the global amount of income earned abroad. 4 The OECD MC governs relations between developed countries. The UN Model Convention has been developed in order to cover the specific needs for tax treaties between developed and developing countries based on the statement that the OECD Model was less suitable for capital importing or developing countries. The general pattern of the articles follows the one of the OECD Model (Introduction. to the OECD MC Commentary, at 14). However, the UN Model globally grants more taxation rights to the source State (Introduction to the UN MC Comm. at 3). 3 7. As regards direct taxation, the Court of Justice becomes involved following either an infringement procedure initiated by the Commission5 (and possibly by a Member State – Article 259 TFEU ((Art. 227 EC)) or the request of a national jurisdiction for a preliminary ruling concerning the interpretation of EU law. Contrary to infringement procedures, where the Court may declare national rules to be incompatible with EU law, preliminary rulings admit merely indirect control of national legislation. In fact, in a preliminary decision, the Court interprets Community law to the extent it may affect the specific legal provisions at stake in particular proceedings before a national judge. On the basis of Article 10 EC – now, repealed TFEU -, Member States are obliged to accept all the consequences of the Court's rulings and to implement them in their national law, in accordance with general principles forming part of the Community’s legal order, such as effectiveness, equivalence and legal certainty.6 According to the Court, when a national tax measure is found to infringe European law, taxpayers may obtain a refund of unduly paid taxes7 by claiming it before national jurisdictions according to the national procedural rules, which can lead to serious financial repercussions for the budget of a Member State.8 8. The role of the Court is not limited to the strict application and interpretation of the Treaty and of secondary legislation. The Court has also developed an array of general legal principles which are relevant in the area of taxation. An eloquent example can be found in the principles of protection of the taxpayers’ legitimate expectations or of legal certainty. Although this principle is not written in the Treaty or in any tax directive, it is part of Community law, and it can protect taxpayers against, for example, retroactive tax laws, at least in harmonised areas.9 Another important principle in the area of taxation is the principle of proportionality, according to which national measures restricting the individual freedoms cannot exceed what is necessary to attain their legitimate objectives.10 Directives leave to Member States the choice of form and means for implementation. That principle will often be used by the Court of Justice to decide whether national 5 Lyal, R., Compatibility of National Tax Measures with EU Law : The Role of The European Commission in Tax Litigation before the European Court of Justice, EC Tax Review, 2015, p. 15. 6 See for example ECJ, 3 December 1998, Case C-381/97, Belgocodex v Belgian State, ECR I-8153. See Lang, M. (ed.), Procedural Rules in Tax Law in the Context of European Union and Domestic Law, Wolters Kluwer, 2010, 752 p.; Douma, "Doorwerking van rechtspraak van het HvJ EG in de nationale rechtsorde", WFR, 2008, p. 1175. 7 See a.o. ECJ, 2 October 2003, Case C-147/01, Weber's Wine World, ECR I-11365; 14 January 1997, joined Cases C-192/95 to C-218/95, Comateb, ECR p. I-165. 8 On the effects in time of the ECJ judgements in tax matters, see the Opinions of AGs Jacobs and Stix- Hackl in Case C-475/03 Banca Popolare di Cremona ECR I-9373 and in Case C-292/04, Meilicke, ECR I-1835, and Lang, M., “Limitation of the temporal effects of judgments of the ECJ”, Intertax, 2007, p. 230. 9 ECJ, Belgocodex (fn. 40); 26 April 2005, Case C-376/02, Stichting "Goed Wonen" v Staatssecretaris van Financiën, ECR I-03445. 10 This principle has to be distinguished from the principle laid down at Article 5 TEU (Art. 5 EC Treaty)), governing the attribution of powers to the EC. See Protocol (no 30) on the application of the principles of subsidiarity and proportionality (1997). 4 measures impeding the basic freedoms can be justified : those measures cannot be accepted if other measures would be less detrimental to the objectives of the Treaty.11 In tax matters, the Court has made applications of this principle in order to limit the scope of national anti-abuse provisions.12 9.
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